Midgette v. Branning Manufacturing Co., 150 N.C. 333 (1909)

March 24, 1909 · Supreme Court of North Carolina
150 N.C. 333


(Filed 24 March, 1909.)

1. Witnesses — Irrelevant Answer — Motion to Strike Out Answer-Objections and Exceptions.

When a question calls for the statement of a fact, but the wit-_ ness expresses an opinion, the party objecting should move the court to strike out the answer. For refusal to do so, an exception -may be lodged.

2. Contracts — Independent Contractor — Burden of Proof.

When it is shown that an injury is sustained in the operation of machinery belonging to defendant, the burden is upon him to show that it was being operated by an independent contractor.

3. Negligence — Master and Servant — Rule of the Prudent -Man— Burden of Proof.

In an action to recover damages for personal injury the burden of proof is on the plaintiff: to show that the defendant failed to exerdse the reasonable care that a prudent man would have used, under the circumstances, in the discharge of a duty owed to plaintiff, and that such failure was the proximate cause of the injury complained of.

4. Master and Servant — Safe Place to Work — Duty of Employer.

An employer owes the duty to his employees working in mills or plants -where the machinery is more or less complicated to provide them with a reasonably safe place to work and to supply them with machinery reasonably safe and suitable, and to keep it in such condition, as far as it can be done in the exercise of reasonable care and diligence.

5. Master and Servant — Employer and Employee — Fellow-servants— Evidence — Instructions.

When there is evidence tending to show that an injury was sustained by plaintiff in the course of his employment, while *334acting under tlie direction of another employee having authority' to' direct the place and manner of his work, an instruction that they were fellow-servants is properly refused.

6. Master and Servant — Employer and Employee — Duty of Employer — Contributory Negligence — Rule of the Prudent Man— Instructions.

While working among dangerous machinery in defendant’s mill or plant, it is the duty of the employee to use the same degree of care required of a man of ordinary prudence under the circumstances. Upon the question of contributory negligence it is proper for the judge to charge the juiT, in effect, that defendant’s liability for a personal injury caused the employee in the course of his employment would depend upon whether the employee acted as a reasonably prudent man would have done to foresee the consequences of his act and avoid the injury.

ActioN tried before Ward, J., and a jury, at Inly (Special') Term, 1908, of TtkRell.

Tbe plaintiff, administrator, alleges tbat plaintiff’s intestate, Leary, as be is informed and believes, was employed and working in tbe mill of tbe defendant company, under its direction, as .assistant engineer, on and before 18 December, 1900; tbat on 18 December, 1900,' tbe said W. S. Leary was killed in tbe mill of tbe defendant company by reason of tbe negligence of said company, in tbat its machinery and belts were not safe and were in a rotten and insecure condition, and unfit for tbe' operation of tbe said mill; tbat tbe said mill of tbe defendant company was not in a safe condition and its machinery was in bad' condition, unsafe and dangerous.; tbat tbe same was old and secondhand, having been carried from another old mill and placed in tbe mill at. Columbia; tbat tbe building was badly and negligently arranged, with not sufficient room for operating said machinery and repairing same, which facts were known to tbe defendant company; tbat tbe plaintiff’s intestate, Leary, while in tbe employ of tbe defendant company and under its directions, was ordered to repair one of tbe belts running tbe machinery of tbe said mill, which bad broken, and be was required to do this work while the mill was running, which was dangerous and unsafe; tbat while so engaged in dis*335charging the duties imposed upon him by bis employer, to wit, “mending one of the belts,” one of them broke and intestate was killed.

Defendant denied that it was in any respect negligent or was guilty of any breach of duty to intestate in the premises. It alleged that plaintiff’s intestate was guilty of contributory negligence. It also alleged that intestate well knew of the condition of the machinery when he entered upon the employment there, a month before his death, and assumed the risk incident thereto. .

The following issues were, without objection, submitted to the jury:

1. “Was the death of plaintiff’s intestate caused by the negligence of the defendant, as alleged?

2. “Did said intestate, by his own negligence, contribute to his death?

3. “What damage, if any, is plaintiff entitled to recover of defendant ?”

There was evidence tending to show that the mill was running at night — 8 or 9 o’clock — to make up lost time, when intestate was killed; that it was in bad condition; that it could not make time without running on “and stopping often”; that it was an old, secondhand mill; that the “hog,” a machine which grinds up slabs, was run by two belts, having a cylinder, with twelve knots, making 1,600 revolutions a minute, and that it was'in bad condition, out of balance, had poor foundation, and was,- on that account, shaking. There was evidence on the part of defendant tending to contradict this evidence.

The direct testimony in regard to the manner in which intestate came to his death comes from 0. H. Leary, who testified that “On the day intestate was killed we had worked part of the time, and started up again at 7 o’clock at night to make up lost time. He was killed between 8 and 9 o’clock, that night. I was upstairs, talking with the sawyer, and he said.to me that one of the ‘hog’ belts was broken, there being a belt on each side of the cylinder. I went down to repair the broken belt. I found it torn in two and took it off, putting a piece of edging between the belt and pulley. I then went down to work on the belt, but soon found that the edging which I had put in had shaken out. Had the ‘hog’ been in place, it would not have shaken and the *336piece would not have come out. It came out because It was shaken so bad. Deceased was helping me to fix the belt. I directed him, and had the right to direct him. He was under my direction. I sent him up to the ‘hog’ to put the piece back. The ‘hog’ was eight feet higher than where we were standing. He walked up on the conveyor box, which conveyed sawdust to the platform. This was the only way he could get up to it without going over the conveyor box and through the belts. I did not see him after he got up. It was not more than a minute.^ When he got up the belt got foul around the pulley; it was slipping; it struck him on the hand. When it first got foul the sawdust was so thick I could not see him until the engine was slowed down. I saw him then, hung up in the belt that caused his death.. If the engine had been shut down when he went up to repair the belt, there was no danger. There would have been no danger if the ‘hog’ had been balanced. The pulley was' badly worn — about played out; the belt was unsound and had been burned. It was two feet between where I was working and the conveyor belt.”

Witness was here asked by plaintiff what was the space condition of the room where he had to work. Defendant objected to this ’ question and to the answer to the same. Objection overruled. Witness answered: “Did not have room; if there had been more room, could have gone around.” To the admission of this question and answer defendant excepted. He said, on cross-examination: “When the machinery ought to stop, it was the duty of both myself and my brother to stop it. My brother had been at the mill some liftle time. W. T. Campen employed us both and jtaid us both. The ‘hog’ was approached by a ladder; to get to the ladder my brother had to come out underneath the belt or go through it; after he got out he could have gone up the ladder; after he got up to pulley he would have been safer going up by the.ladder which was provided by the company. If the engine had been stopped, there would have been no'danger. The cause of danger was that my brother went up there when the engine was in motion. When I was there it was iny duty to stop the engine. When we were at work on the pulley the safer plan was to go up by the way he went.”

*337Plaintiff was permitted, over defendant’s exception, to show by one Walker that the “hog” would shake a great deal; that the mill broke down often, and that “we could seldom make a day” — the breaking of the conveyor chain was the cause of the delay; that there was no safe way to go up into this machinery while the mill was running. Witness had worked at the mill, but had not seen the “hog” for three months before the accident.

Leary was recalled, and testified that “to go around the shaft there was only twelve inches space; and that he would have to go all around the mill.”

Defendant introduced W. T. Campen, who had charge of the mill. He testified, upon the question of negligence and contributory negligence, that “I instructed the'hands never to repair the mill unless it was shut down. I gave this instruction to the deceased and his brother, Howard Leary. * * * There was greater danger going up the way the deceased went than if he had gone up the steps which were provided by the company. Deceased had been working with the company six weeks when he was killed. The brother of the deceased said it was his own fault that he was killed.” There was contradictory evidence upon this point. Witness also testified that “The' mill and machinery were in as good condition as mills generally are, and were kept in good condition. No ‘hog’ could be run for twenty hours in balance, owing to the great strain upon it, but this ‘hog’' and machinery were in a condition usual with mills.” Defendant introduced other testimony to the same effect. It was admitted that the mill belonged to defendant.

For the purpose of showing that plaintiff’s intestate was'not employed by it, defendant introduced W. T. Campen, who testified that in December, 1899, he was employed by the Branning Manufacturing Company to take this mill and run it. By the contract he was to keep up all repairs and-do all the work. He was to receive the timber from the log cars of the Branning ■Manufacturing Company, cut the logs into lumber and deliver it to the Branning Manufacturing Company, thus manufactured for shipment on its cars, for which the Branning company was to pay him $1.75 per thousand feet. “We were to give each other thirty days’ notice before either could give up the contract. *338I took charge on 15 January. Later, and before the accident, I became dissatisfied with the contract and gave notice that I would quit, whereupon Mr. Branning, president of the company, had an interview with me and told me he would pay me what I could make, and he indemnified me that T should make $150 per month. Under the contract I was to have entire charge of the mill; I was to hire the hands and to discharge them, and no one else had anything to do with them. I remained in charge two years and one month. If I made more than $150 per month, which ;he guaranteed, at $1.75 per thousand, I was to have it. * * * I kept no office and kept no books. I made out the pay rolls and sent them to Edenton, and the money was charged to me. The Branning company employed an inspector to keep the amount of lumber I cut. This was agreed upon when I made the bargain, and this was the only person about the mill that the Branning company hired or paid. It was also agreed, when the contract was made, that the Branning company should keep the books and should furnish the cash for the purpose of paying the hands upon the pay rolls furnished by me. This was done because I had no facilities for bookkeeping and because there were no banks in Columbia from which I could get money. There was some trading done by my laborers at the store of the Branning Manufacturing Company. This .credit was given them at my request. Statements were sent to me and I was responsible to the amount of the wages due the hands. The amounts so advanced were charged to me on the books. The company agreed to pay me five per cent of the net profits for the trade of my men at their store. This agreement was not made until after the guarantee by the Branning company, referred to above. I hired intestate, paid him and directed him, and no one but me had the right to discharge him. I would not have kept a man as assistant engineer who was disagreeable to the chief, and would have dismissed him upon complaint of the chief, but he could not be removed without my consent. My name did not appear upon the pay roll at all — only the hands employed by me. Bills for material furnished the mill and’ for repairs upon the mill were charged' against me, and I would send them to the Branning company, which would put them to my account. That company had nothing to do with the work, except to give me *339any special sizes they would want to cut. Generally the timber was cut in sixteen and twelve-foot lengths, but if defendant wanted a special bill I would cut them for it.” .

This testimony was corroborated by Horton Corwin, Jr., president of defendant company. Plaintiff’s witness, Walker, upon this branch of-the case, testified that while he was employed at the mill (in 1900) he saw Mr. Branning- come to the mill often. “He would talk with Campen; were walking around the plant together once or twice a month.” There was other evidence to the same effect. Defendant owned a plant in Edenton, N. C. The mill in which plaintiff’s intestate was employed was located at Columbia, N. C. The lumber cut there belonged to defendant; it was shipped to Edenton.

Defendant, at the appropriate stages of the trial, moved for judgment 'of nonsuit, which was refused, and defendant excepted. Defendant made a number of requests for special instructions, which are noticed in the opinion. The - instructions given, to which exceptions are taken, are noted and discussed in the opinion. There was a verdict for the plaintiff upon both issues, and damages assessed at $2,000. Motion for new trial; motion denied. Exception. Judgment upon the verdict. Defendant assigned errors and appealed.

J. B. Leigh and Aydlett & Ehringhaus for plaintiff.

Pruden & Pruden and Shepherd & Shepherd and W. M. Bond for defendant.

Connor, J.,

after stating the case: No issue being tendered in regard to the alleged assumption of risk by plaintiff’s intestate, that defense is eliminated from the cáse. We presume that the learned counsel treated that phase of the case as involved in the issue directed to the alleged contributory negligence of plaintiff’s intestate. We have set out the testimony at some length, because the requests for special instructions and the exceptions to the instructions given present every possible question which could arise upon the record. We will first dispose of the exceptions to his Honor’s admission of testimony. The first is directed to the answer given by the witness as to the “space condition,” etc. It will be observed that the answer is not responsive to the ques*340tion. He was not asked for an oiDinion or conclusion, but for a fact. If his Honor had been so requested, he would doubtless have stricken out the answer and directed the witness to give one responsive to the question. This the witness did later on by saying that “there was only twelve-inch space to go around the shaft.” While the first answer may have been, and probably was, subject to the criticism made by defendant, it was, in the light of the subsequent answer, giving the fact upon which the jury were enabled to draw their own conclusion, not prejudicial to defendant — certainly not sufficiently so to call for a new trial. It is frequently difficult to draw the line between testimony which is a statement of fact and that which is a conclusion of the witness. The testimony upon which the next two exceptions are based is, at the most, irrelevant and harmless. The exception to the testimony of "Waters, in regard to the conditipn of the mill three months before the death of plaintiff’s intestate, is not referred to in the brief and is to be treated as abandoned. The motion for judgment of nonsuit was properly denied.

The contention of the defendant in regard to the question of Campen’s being an independent contractor, which, as said by his Honor to the jury, lay at the threshold of the case, is presented by the prayer for an instruction that, “Upon all of the evidence in this case, the jury shall find that Campen was an independent contractor; that defendant owed no duty to the intestate, and they shall answer the first issue ‘No.’ ” This his Honor declined, but said to the jury “that this would be the first inquiry, and if they found that Campen was an independent contractor, that ends the case.” He further instructed the jury: “It is contended by the defendant that it had contracted its mill to Campen. It is accepted law that where a contract is for something that may be lawfully done and is proper in its terms, and there has been no negligence in selecting a suitable person to contract with, in respect to it, and no general control is reserved, either in respect to the manner of doing the work or the agents to be employed in doing it, and the person for whom the work is done is interested only in the .ultimate result of the work and not in several steps as to progress, the latter is not liable to a third person for the negligence of the contractor, but liability of the'superior master depends upon his right to control the *341conduct -of tbe person witb wbom be contracts in tbe prosecution of tbe work. .If you find from tbe evidence tbat Campen leased, tbe mill of tbe Branning Manufacturing Company under contract, tbat be was to employ tbe labor and bear all tbe expense of running tbe mill, was to receive tbe logs of tbe company from tbe trucks, manufacture tbe same into timber and deliver it aboard cars for shipment, at $1.75 per thousand feet, witb guarantee tbat be should make as much as $150 per month, and tbat it did not retain tbe right to control tbe conduct of Cam*pen and was interested only in tbe ultimate result of tbe work, then tbe defendant is not liable, and you will answer tbe first issue No.’ But if you find from tbe evidence tbat there was a general control of tbe operation of tbe mill reserved by tbe defendant company in respect to tbe general operation of tbe mill, then go further and consider tbe question of negligence raised.”

To these instructions defendant excepted. We think tbat tbe charge is in accordance witb tbe decisions of this Court. Tbe language used by bfs Honor in defining an independent contractor is identical witb tbat of Mr. Justice Walker, in Craft v. Lumber Co., 132 N. C., 151, quoted witb approval in Young v. Lumber Co., 147 N. C., 26. If bis Honor correctly declined tbe instruction, which practically took tbe question from tbe jury, there can be no valid criticism of tbe charge given. Plaintiff suggests tbat tbe burden of showing tbat Campen was an independent contractor was on tbe defendant. Tbe burden was upon the plaintiff to show tbat bis intestate. was in tbe employment of defendant. It would seem tbat when be showed ¿bat tbe mill was tbe property of tbe defendant corporation, tbat at tbe time of bis employment it was being operated in sawing the logs of tbe defendant, and tbat tbe sawed lumber was shipped to defendant at Edenton, near by, where it was operating a plant, plaintiff was entitled to go to tbe jury on tbe issue. “Where tbe plaintiff has suffered an injury from tbe negligent management of a vehicle, such as a boat, car or carriage, it is sufficient prima facie evidence tbat tbe negligence was imputable to tbe defendant to show tbat be was tbe owner of tbe thing, without proving affirmatively tbat tbe person in charge was tbe defendant’s servant. It lies witb tbe defendant to show tbat tbe person in charge *342was not bis servant, leaving bim to show, if be can, that tbe property was not under bis control at tbe'time, and that tbe accident was occasioned by tbe fault®of a stranger, an independent contractor or other person, for whose negligence tbe owner would not be answerable.” 1 Sberm.' and Redf. Neg., 71. Any other rule, especially where persons are dealing with corporations, which cab act only through agents.and servants, would render it almost impossible for a plaintiff to recover for injuries sustained by defective machinery or negligent use of machinery. The plaintiff’s intestate may be taken to have known that the mill was the property of defendant — that it was being used for the purpose of sawing defendant’s logs. One witness said that “defendant owned much timber on this side of the sound and a railroad.” Campen said: “There was some trading done by my laborers at the store of the Branning Manufacturing Company.” All of this was well calculated to cause intestate to suppose that Cam-pen was operating the mill for defendant company, and, in the absence of any testimony to the contrary,' would be sufficient to carry the case to the jury and sustain a verdict. Without entering into the debatable domain of the burden of proof, it is sufficient to say that, at least in this case, the plaintiff had put ujion defendant the duty of “going forward” or “persuading” the jury that Campen was not operating the mill for the owner, but as an independent contractor. The instruction asked by defendant involves the proposition that, taking'all of the evidence as true, it has shown, as a matter of law that Campen was an indeiDendent contractor. An examination of the authorities and decided cases disclose^much confusion and uncertainty in respect t.o what constitutes an independent contractor. The question underwent an exhaustive discussion in Wiswall v. Brinson, 32 N. C., 554, in which Pearson, J., and Ruffin, G. J., differed in opinion. The opinions are “mines of learning” and “arsenals of argument.” Pearson, J., begins the discussion by saying that “the question is one of serious difficulty,” and that the cases “are' numerous,” that “many of them turn upon nice distinctions.” He states the fundamental principles, that “One should so use his own as not to injure another,” and “That which you do by another, you do by yourself.” And from these two maxims he says: “The general' rule results where one procures work to be done, if a third *343person is injured by tbe negligence or want of skill of the person employed, the person for whose benefit and at whose instance the work is done must make compensation. * * * The rule is founded upon justice, and exceptions to it should be allowed with caution, and only to the 'extent called for by public convenience.” He then proceeds to discuss the recognized exceptions, as established by decided cases. We would not undertake to add anything to the discussion in the opinion, concurred in by Nash, J., and the dissenting opinion of Ruffin, G. J. It is conceded that where the person employed to do work carries on an independent employment and does the work in his own way, by his own means, and free from the. right of control by the person for whom the work is done, he is an independent contractor. This exception is based upon public convenience and sound policy. It is said: “The true test, as it seems to us, by which to determine whether one who renders service to another does so as a contractor or not, is to ascertain whether he renders the service in the course of an independent occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished.” Such was the leading case of Milligan v. Wedge, 12 Adol and E., 737, cited by Sharpenstein,H., in Bennett v. Truebody, 66 Cal., 509. There the injury was caused by the negligence of a plumber, who “exercised an independent and distinct employment.” It was held that the owner of the premises was-not liable. In Hexamer v. Webb, 101 N. Y., 377, the party employed was engaged in the “roofing and cornice business.” Coal Co. v. McEnery, 27 Conn., 274., It would seem that where the person employed to do the work in his. own way, and free from the control of the employer, is engaged in an independent calling, it is but just that persons who contract with him, either as employees or otherwise, should look to him for compensation. We do not mean to say that the exception is confined to work done by one engaged in an independent, calling. It is certainly much more difficult to fix the limits of the exception when this element is absent. In Waters v. Fuel Co., 52 Minn., 474, the employee of defendant was engaged in delivering coal at a stipulated price per load: Held, that he was the servant of the company. The Court said: “It is not easy to frame a definition, of the term ‘independent *344contractor’ that will satisfactorily meet the conditions of different cases as they arise, as each case must depend so largely upon its own facts.” Speed v. Railroad, 71 Mo., 303, was an action for personal injuries sustained by plaintiff while engaged in unloading a car belonging to defendant. It appeared that the defendant had entered into an agreement with one Merry, by which he was to take entire charge and control of the business of loading and unloading freight to and from its cars at St. Louis station. By the terms of the agreement'Merry was to have authority and control over the grounds, yards and building at the station, including engines and cars to enable him to properly discharge his duties under the agreement. Merry was to be paid fifteen cents per ton for each ton shipped to or from the yard. All the business was to be transacted by Merry in a manner satisfactory to the superintendent of defendant and subject to his control. Plaintiff was employed by Merry and was injured while in such employment. Defendant ’set up the defense that Merry was an independent contractor. Henry, J., said: “There is an irreconcilable conflict in the adjudications upon this subject. The general principle is recognized everywhere that one is only liable for damages occasioned by the act of another when he stands in the relation of master to that other. It is an e'asy matter to state the general principle, but it is often extremely difficult to determine, from the facts in a given case, whether the relation of master and servant exists.” It was held in that case that the relation existed and defendant company was liable. The value of the decision is weakened by the fact that the court attached importance to the character of the business in which defendant was engaged — a common carrier. Probably all that can be done, after an examination of the decided cases, is to adopt the conclusion of Judge Bailey, that “There is much confusion in the authorities, and much depends on the exact‘conditions of the employment and particular circumstances attending each case. The mere fact that one works by the piece or job, and not by the day or week, is not a conclusive test of the character of the employee, whether a servant oí-an independent contractor.” Personal Injuries, 410.

The plaintiff having shown conditions entitling him to go to the jury, it became the duty of defendant to show or at least to *345introduce evidence to repel the plaintiff’s proof. Tbe truth of tbe testimony, together with the reasonable inferences to be drawn therefrom, was for the jury. There was much in the testimony to justify them in rejecting the defendant’s contention. As we have pointed out, the mill belonged to defendant; the logs being cut were its property; the hands were paid by orders on the defendant; some of them traded at defendant’s store; the defendant kept an inspector at the mill to take an account of the lumber; the defendant guaranteed that Campen should make at least $150 per month; the contract was for no definite time. There is no suggestion that Campen carried on any independent employment. Mr. Branning came to the mill often. It is true that defendant’s testimony was to the effect that the company, had nothing to do with the work, except to give special sizes it wanted cut, and tended to explain many of the circumstances and conditions relied upon by plaintiff. It is significant that Campen uses the expression that he was employed by the Bran-ning Manufacturing Company to take the mill and run it. In Young v. Lumber Co., supra, the contract under which the logs were cut in the woods was in writing. We held that his Honor erroneously submitted the question as to its legal signification to the jury, but held that he should have submitted the question whether the contractor was cutting the logs in good faith under the contract. Merely calling a man an independent contractor cannot make him so. We should hesitate to hold that a person or corporation could, under the form and semblance of an independent contract, operate a secondhand mill, in bad repair, dangerous to employees, for the purpose of having its logs cut into lumber, and escape liability for injuries sustained by the employees, who, in good faith and upon reasonable grounds, supposed that they were employed by and were working for the' owner of the mill. Such an exception to the general rule stated by Pearson, J., in Wiswall v. Brinson, supra, would not be founded upon public convenience or sound policy. In Davis v. Summerfield, 133 N. C., 325, we held that where the character of the work to be done was essentially dangerous, the duty to use due care could not be delegated to an independent contractor by the owner of the property. We also discussed the question in Young’s case, supra. This is a recognized exception *346to tbe rule. How far this exception to tbe nonliability of tbe owner of tbe property is applicable to a case like tbis we do not undertake to say. It is well worthy of consideration whether tbe owner of machinery, unsafe for use and dangerous to employees, can, by contracting with an insolvent person to operate it to do tbe owner’s work, and by simply surrendering control of tbe manner of doing tbe work, avoid liability for injuries sustained by employees. It may be that liability would be based upon a different legal foundation' — falling within tbe domain of tort, rather than breach of contract. Railroad v. Madden, 77 Kan., 80.

Upon tbe question of negligence tbe court instructed tbe jury: “In order to establish actionable negligence it is necessary for tbe plaintiff to show to tbe jury, by tbe greater weight of evidence, that there has been a failure by tbe defendant in tbe exercise of reasonable care to discharge some duty which it owed tbe plaintiff, under tbe circumstances in which they were placed, reasonable care being that care which a prudent man would exercise under similar circumstances, when surrounded by like conditions; and not only tbis, but be must also show that- such failure of duty was tbe proximate cause of tbe result, proximate cause being that which produces tbe result in a continuous se-quenceand one without which would not have happened, and one which a man of ordinary jn’udence could foresee that such result would likely happen. It is tbe law in North .Carolina that , an employer of labor to assist in tbe operation of mills — • plants- — where tbe machinery is more or less complicated is required to provide bis employees, in tbe exercise of reasonable care, a reasonably safe place to work, and to supply them with machinery reasonably safe and suitable, and be is also required to keep such machinery in such condition, as far as can be done in tbe exercise of reasonable care and diligence.”

~We perceive no error in tbis instruction.- It is in accordance with tbe -decisions of tbis Court and tbe well-settled principles of the law prescribing tbe duty of employers to t-heir employees. Tbe record states that bis Honor charged tbe jury in respect to fellow-servants, to which there was no exception, other than bis refusal to instruct tbe jury, as requested, that intestate and bis brother, Howard Leary, were fellow-servants. Tbis, in tbe light *347of the testimony of Howard, “I directed him and had a right to direct him; he was under my direction; I sent him up to the 'hog’ to put the piece back,” he could not have given. Defendant asked a number of instructions upon the second issue, some of which embodied correct propositions of law. Some of them could not have been given as asked, because they practically took the question from the’jury. His Honor instructed ■ the jury upon this issue: “While the law imposes a duty upon the master, it also imposes a correlative duty upon the serrant. It requires him to exercise ordinary care for his own safety, to use his intelligence and .his senses, and it holds him responsible if he is injured by his failure to exercise such care. It requires him to observe the machinery at which he is working and the appliances used to discover those dangers which a man of ordinary prudence would discover; and if he fails to perform his duty and is injured thereby, he Cannot recover damages, for while the plaintiff assumes the risk incident to the working in the mill, he did not assume the risk resulting from defective machinery or from defective place or appliances to do his work; and if the plaintiff knew of the danger of the machinery when he went up to fix the ‘hog,’ and if in consequence thereof the danger to himself was so obvious that any man of ordinary prudence would not have gone up the way plaintiff went, then the plaintiff would be guilty of contributory negligence, and you should answer the second issue ‘Yes.’ If, however, the plaintiff was not guilty of contributory negligence, you will answer this issue ‘No.’ If there was a safe way to go to the ‘hog’ provided by the company, which intestate knew or ought to have known, and he chose another way, which was unsafe, and this was the proximate cause of the hurt, the jury shall answer the second issue ‘Yes.’ That if the jury shall find that it was clear in'the mind of one of ordinary intelligence that it was dangerous to go into the machinery as deceased did, and that the danger was obvious and imminent, and, notwithstanding, undertook to do so, and his doing so was the proximate, cause of his hurt, the jury will answer the second issue ‘Yes.’ ”

These instructions are correct in themselves and, we think, present every phase of the controversy. The exception to the *348refusal to dismiss the ease because not brought in one year was not pressed in this Court. It is settled by Meekins v. Railroad, 131 N. C., 1.

"We have examined the entire record, in the light of the exceptions made to his Honor’s rulings and the briefs of counsel. The case was carefully tried and fairly submitted to the jury. The evidence, while in some respects conflicting, sustains the plaintiff’s contention that the machinery was in bad condition, unsafe, and certainly dangerous when being operated at night. There is

No Error.